### THEAITORKEY GENERAL

GERALDC, MANN Ar~srr~s~ 

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HonorableJ..E. Broussard,Chairman Texs% Rice DevelopmentCommission Beaumont,Texas

Dear Sir: Opinion No. O-l+143 Re: Whether taxes collectedunder' Texas Rice DevelopmentAct, H.B. 136, Acts 47th Leg., may be held in escrow pending judicialdetermination of validity of the Act.

In your letter of October 13th you request our opinion on the followin questions relating to the Texas Rice Development Act, B. B. 13g, Acts 47th Legislature, Regular Session:

"1. As we understand,this processing tax law became effective ninety days after adjournmentof the Legislature (October2, 1941) and we shave approved aform; of tax return to be mailed to each of the rice millers, to be executed
as provided by said law. 'sJould the Commission,acting advisory to the State.Department of Agriculture,

be per% mitted to hold all taxes in trust or escrow pending the outcome of any suit contestingthe validity of saidact or either of the acts of Arkansas or Louisiana? In this connection,we are advised that there is now before the Supreme Court~ofArkansas a suit by one of the rice millers of that statecontesting the validity of its law. If your opinion is that we can hold said funds in escroiv, then how long shouldwe hold them?

"2. Should any of the rice millers upon receiptof the monthly tax returns pay the tax under said law to us, would
we be justified in going ahead and~using the money? If so, then in the event the rice law of either of the three states should be declared invalid,would the members of the Commission, or the State Department of Agriculture,be personally liable for the refundingof the money to the taxpayer?"

i In our Opinion No. O-4114, copy of which is~enclosed herewith,we held that the-taxes collectedunder said Texas Rice Development Act are to be deposited in the State Treasury'andto be--expended for the purpose declared in said Act upon warrants drawn by ther.

Honorable J. E. Broussard,Chairman, Page 2 o-4143

Comptrollerof Public Accounts. This being true, taxes paid under the Act may be held in suspensepending a judicialdetermination of the validity of the Act only under the statutory procedure prescribed in such cases. This procedure is set out In Articles 4388 and 7057b, Vernon'sAnnotated Civil Statutesof Texas. These statutesare so lengthy that we will not set them out in full in this opinion. Suffice it to say that Article 7057b, requires the taxpayerto make payment of the tax and "accompany such payment with a written protest setting out fully and in detail each and every ground or reasonwhy it is contendedthat such demand is unlawfuland unauthorized," and to file suit in Travis County for recoveryof the tax within ninety (90) days from the date of ayment. 110 S.ul.(2dP 891; Producers& Refiners Corp. See Rogers v. Daniel Oil & Royalty Co., of Texas v. Heath, Sl S.N. (2d) 533; Rainey v. Malone, 141 S.ti/. (2d) 713.

Any money which is paid under protest is not subjectto being spent for the purposesenumerated in the Rice Development Act pending determination of the suit for recoveryby the taxpayer. Any taxes which are not paid under protestwill be deposited in the State Treasuryand will be subject to disbursement upon warrants, issued by the Comprtollerof Public Accounts in the absence of any judicialdeclarationor determination to the contrary. As said in our opinion No. O-2627:

"The Supreme Court of the United States in the case of United States v. Realty Company, 163 U. S. 427, 41 U. S. (L Ed.) 215 held knowledgeof the invalidityof an Act of Congress wi¬ be imputed, in advance of any authoritativedeclarationto that effect, to thosewho are actingunder its provisions,so as to preclude them from having equities based on their relianceupon the Act.

"It has been said that a ministerialofficerhas.not the right to decide upon the constitutionality or unconstitutionality of an Act passed with all the' formalityof law. It is the duty of such officers to execute and not to pass judgment on the law. Volume 9 Texas Jurisprudence, 468; Sessumsv. Botts, 34~ Tex. 335 fholdingan unconstitutional act regulatingthe collectionof debts protectedclerks of courts acting under it)."

The members of the Texas Rice DevelopmentCommissioncannot be personallyliable for the refund of any taxes to the taxpayers when such tax moneys have been paid to the State Treasurer,because, in the event such taxes are not paid under protestand suit filed for their recoverywithin ninety (90) days, as provided by Article 7057b, the taxpayerwould not be entitledto a refund; and in the event such taxes are paid under protest and suit is filed for their recovery,their disposition will be determinedby the final judgmentof the court in such suit.Honorable J. E. Broussard,Chairman, Page 3 o-4143

.$PPROVZD

NOV. 4, 1941

GROVER SZLLERS

FIRST ASSISTANTATTORZY GENERAL

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ENCLOSURE Yours very truly

ATTORNEYGENERALOF TEXAS

BY Walter R. Koch

Assistant